Colorado Committee Kills Bill to Take on Federal Gun Control; Past, Present, and Future

DENVER, Colo. (Feb. 16, 2023) – On Monday, a Colorado House committee killed a bill that would have ended state enforcement of a wide range of federal gun control measures; past, present and future. The passage of this bill would have taken an important step toward nullifying federal acts in practice and effect that infringe on the right to keep and bear arms within the state.
Rep. Ken Degraaf (R) introduced House Bill 1044 (HB1044) on Jan. 9. Titled the “Second Amendment Preservation Act,” (SAPA) the legislation would ban any entity or person, including any public officer or employee of the state and its political subdivisions, from enforcing any past, present or future federal “acts, laws, executive orders, administrative orders, court orders, rules, regulations, statutes, or ordinances” that infringe on the right to keep and bear arms.

The bill is similar to the Missouri SAPA enacted in 2021.

On Feb. 6, the House Committee on State, Civic, Military & Veterans Affairs voted 8-2 to kill HB1044 down party lines. All eight Democrats voted against the measure with two Republicans supporting it.

According to reporting by Colorado News Online, Democrats in the Colorado House unanimously opposed the bill, with civil defense attorney Mark Harris saying, “This hodgepodge of legalese and constitutional buzzwords is nothing more than a power grab.”

There was also opposition from police lobbyists who claimed the bill would prevent Colorado law enforcement from cooperating with federal agencies to solve firearm-related crimes.

Rep. Andrew Boesenecker (D) of Fort Collins said in a statement, “Across the country, sheriffs, prosecutors, and police chiefs have raised concerns that this type of legislation will make it harder for them to protect their communities. As a responsible gun owner, I know there’s more we can do to prevent gun violence, and House Democrats are committed to this goal. That’s why we took decisive action today.”

DETAILS OF THE LEGISLATION

The bill includes a detailed definition of actions that qualify as “infringement,” including:

•  A tax, levy, fee, or stamp imposed on firearms, firearm accessories, or ammunition that is not also applicable to all other goods and services and may reasonably be expected to create a chilling effect on the purchase or ownership of firearms, firearm accessories, or ammunition by law-abiding citizens.
• A registration or tracking of firearms, firearm accessories, or ammunition.
• A registration or tracking of the ownership of firearms, firearm accessories, or ammunition.
• An act forbidding the possession, ownership, use, or transfer of a firearm, firearm accessory, or ammunition by a law-abiding citizen.
• An act ordering the confiscation of firearms, firearm accessories, or ammunition from a law-abiding citizen

The proposed law defines a “law-abiding citizen” as “a person who is not otherwise precluded under state law from possessing a firearm.”

Under the proposed law, infringement on the right to keep and bear arms would include some provisions of the National Firearms Act of 1934, the Gun Control Act of 1968, President Trump’s bump-stock ban, proposed federal “red-flag laws,” and any future gun control schemes implemented by the federal government.

The legislation includes a provision that would allow anybody who violates the law and knowingly deprives somebody of their right to keep and bear arms as defined by the law to be sued for damages in civil court.

Law enforcement agencies and political subdivisions in Indiana would be subject to a civil penalty of not less than $50,000 for enforcing or attempting to enforce any of the infringements outlined by the law or for giving material aid and support to such enforcement efforts.

EFFECTIVE

The federal government relies heavily on state cooperation to implement and enforce almost all of its laws, regulations and acts – including gun control. By simply withdrawing this necessary cooperation, states and localities can nullify many federal actions in effect. As noted by the National Governors’ Association during the partial government shutdown of 2013, “states are partners with the federal government on most federal programs.”

Based on James Madison’s advice for states and individuals in Federalist #46, a “refusal to cooperate with officers of the Union” represents an extremely effective method to bring down federal gun control measures because most enforcement actions rely on help, support and leadership from state and local governments.

Fox News senior judicial analyst Judge Andrew Napolitano agreed. In a televised discussion on the issue, he noted that a single state taking this step would make federal gun laws “nearly impossible” to enforce.

“Partnerships don’t work too well when half the team quits,” said Michael Boldin of the Tenth Amendment Center. “By withdrawing all resources and participation in federal gun control, states and even local governments can help bring these unconstitutional acts to their much-needed end.”

LEGAL BASIS

The state of Colorado can legally bar state agents from enforcing federal gun control. Refusal to cooperate with federal enforcement rests on a well-established legal principle known as the anti-commandeering doctrine.

Simply put, the federal government cannot force states to help implement or enforce any federal act or program. The anti-commandeering doctrine is based primarily on five Supreme Court cases dating back to 1842. Printz v. U.S. serves as the cornerstone.

“We held in New York that Congress cannot compel the States to enact or enforce a federal regulatory program. Today we hold that Congress cannot circumvent that prohibition by conscripting the States’ officers directly. The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program. It matters not whether policy making is involved, and no case by case weighing of the burdens or benefits is necessary; such commands are fundamentally incompatible with our constitutional system of dual sovereignty”

No determination of constitutionality is necessary to invoke the anti-commandeering doctrine. State and local governments can refuse to enforce federal laws or implement federal programs whether they are constitutional or not.

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